Public Bill Committee

[Frank Cook in the Chair]

Clause 14

Material subject to the Police and Criminal Evidence Act 1984

James Brokenshire: I beg to move amendment 148, in clause 14, page 30, line 7, after fingerprints, insert or impressions of footwear.
Good morning, Mr. Cook, and good morning to the other members of the Committee. Amendment 148 is probing and relates to the destruction of particular classes of data. It is designed to test the Government in relation to the operation of proposed new section 64ZC of the Police and Criminal Evidence Act 1984. Under PACE, there are powers to take impressions of footwear among other things such as fingerprints, DNA profiles and DNA samples. We touched on the issue of footwear. If someone is wearing trainers, the impression from underneath them can be relevant intelligence in cases of violent crime. I want to understand why in other provisions, there are references to impressions of footwear being destroyed within a particular time, but that does not appear to apply in relation to new section 64ZC(3). Certainly new section 64ZD(3) does refer to impressions of footwear. Is there any inconsistency or is there a rational explanation? I suspect that there is.

David Hanson: Good morning, Mr. Cook. I hope that I can offer the hon. Gentleman a rational explanation of the provisions. Clause 14 includes new section 64ZC of PACE, making provision for the destruction of fingerprints and DNA profiles derived from samples taken from persons subject to a control order. I hope that this is the point of clarification he wanted. The amendment would ensure that impressions of footwear taken from such individuals also had to be destroyed. I can deal with that by saying to the hon. Gentleman that there are currently no powers for impressions of footwear to be taken from controlled persons under any legislation. As there is no power to take them, there is no need for them to be destroyed. I hope that is helpful.

James Brokenshire: I am grateful for the Ministers explanation. As he will appreciate, section 64 covers quite a broad range of issues, and I simply wanted to confirm what I suspected was the case. I am grateful for his confirmation and clarification and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Hanson: I beg to move amendment 128, in clause 14, page 30, line 14, leave out of a recordable offence and insert
(a) in England and Wales or Northern Ireland of a recordable offence, or
(b) in Scotland of an offence which is punishable by imprisonment,.

This amendment amends new section 64ZC of PACE to provide that the destruction regime in that section (persons subject to control orders) ceases to have effect if the person is convicted of a recordable offence in Northern Ireland or an offence in Scotland which is punishable by imprisonment.

Frank Cook: With this it will be convenient to discuss Government amendments 129 to 133 and 114 to 121.

David Hanson: Broadly, these amendments to the clauses relating to DNA retention make provision for Scotland. Amendments 114 to 121 relate to the introduction of a regime for the retention, destruction and use of relevant physical data and DNA material under the Terrorism Act 2000 as applicable to Scotland. Amendments 128 to 133 relate to the destruction regime for fingerprints and non-intimate samples taken from controlled persons, amending the existing provision in clauses 14 and 15 relating to the circumstances in which the material does not have to be destroyed to cover cases in which the person has a conviction for an offence anywhere in the United Kingdom. The amendments are, I believe, in order and I commend them to the Committee.

Amendment 128 agreed to.

Amendment made: 129, in clause 14, page 30, line 15, at end insert
( ) For the purposes of subsection (1)
(a) a person has no previous convictions if the person has not previously been convicted
(i) in England and Wales or Northern Ireland of a recordable offence, or
(ii) in Scotland of an offence which is punishable by imprisonment, and
(b) if the person has been previously convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence other than a qualifying offence, committed when the person is aged under 18.
( ) For the purposes of that subsection
(a) a person is to be treated as having been convicted of an offence if
(i) he has been given a caution in England and Wales or Northern Ireland in respect of the offence which, at the time of the caution, he has admitted, or
(ii) he has been warned or reprimanded under section 65 of the Crime and Disorder Act 1998 for the offence, and
(b) if a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction..
( ) In this section
(a) recordable offence has, in relation to a conviction in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989, and
(b) qualifying offence has, in relation to a conviction in respect of a recordable offence committed in Northern Ireland, the meaning given by Article 53A of that Order..(Mr. Hanson.)

This amendment amends new section 64ZC of PACE so that where a person already has a conviction in Northern Ireland for a recordable offence, or in Scotland for an offence which is punishable by imprisonment, the destruction regime in that section (persons subject to a control order) does not apply.

Douglas Hogg: I beg to move amendment 99, in clause 14, page 30, line 19, leave out
or only one exempt conviction.

Frank Cook: With this it will be convenient to discuss the following: amendment 68, in clause 14, page 30, line 20, after offence, insert
and is not tried for or is acquitted of that or a related offence.
Amendment 80, in clause 14, page 31, line 1, leave out
or only one exempt conviction.
Amendment 81, in clause 14, page 31, line 3, after offence, insert
and is not tried for or is acquitted of that or of a related offence.
Amendment 84, in clause 14, page 32, line 13, leave out
or only one exempt conviction.
Amendment 85, in clause 14, page 32, line 14, after offence, insert
and is not tried for or is acquitted of that or of a related offence.
Amendment 74, in clause 14, page 33, line 25, leave out
or only one exempt conviction.
Amendment 75, in clause 14, page 33, line 26, after offence, insert
and is not tried for or is acquitted of that or a related offence.

Douglas Hogg: To summarise, the purpose of this group of amendments is to ensure the destruction of the material either after acquittalI have left a period of 12 months from the date of acquittalor after a decision. The amendments would require the destruction of the material within one year of the date of acquittal or, if there has been no trial, after a reduced period, other than that provided for in the Bill. Where there is an acquittal, or where there is no trial, the material should be destroyed after a substantially abbreviated periodabbreviated in comparison with that in the Bill.
There is public anxiety about the retention of material, although as I said in a previous debate, I am not sure whether I agree with that public anxiety. None the less, it exists, and the case for destruction is responsive to it. The Bill probably enables the retention of material for longer than is consistent with public judgment. As I said last time, I reach a slightly different judgment, but that is probably neither here nor there for these purposes. The public want this stuff to be destroyed fairly promptly, and that is what I have tried to provide for in the amendments.

James Brokenshire: In amendment 99, my right hon. and learned Friend proposes removing the words
or only one exempt conviction
from new section 64ZD of PACE. He did not mention this specifically, but the amendments raise an interesting and important point about the provisions on exempt convictionsthose under which a recordable offence is not a qualifying offence for the purposes of clause 7 if the person is under the age of 18. Under those provisions, the DNA profile of someone who has been convicted of an exempt offence is retained for five years.
A question arises about the interrelationship between the regime in new section 64ZD and other regimes. Is the framing is right? Should the Bill refer to someone with an exempt conviction when the five-year period has expired? I can understand that when someone has been subject to an exempt conviction, as drawn by the Governments proposals, and the five-year period has expired, another DNA sample may be required to create a DNA profile that can be retained on the national DNA database. However, I am concerned that the proposals will create a period of six years plus five years and that top-up might lead to a very extended period. In other words, a profile will already have been taken and put on the national DNA database as a consequence of an exempt conviction, triggering the five-year requirement.
As we know, however, there are duplications on the national DNA database. Someone who has had their DNA taken may be arrested again. Should it be six years plus five, or six years plus whatever the residual amount is? In other words, when the original profile was taken it would normally trigger the five-year requirement under the exempt conviction regime, but if a subsequent arrest takes place it will then start a new six-year period. That is my understanding. I want to test whether that is the Governments intention.
I see some logic in having an extended post-arrest period for certain serious offences, following the lines of argument that we take in relation to the treatment of the material. However, an 11-year period seems extensive in such circumstances. The Government are deeming to treat someone as having an exempt convictionin other words, a young person who may have been subject to a recordable but not qualifying offence, which is not in the category of serious offences. I wish to understand the logic and interrelationship between the two regimes.
I turn to amendment 68 and my right hon. and learned Friends other amendments. I understand his underlying desire that DNA samples from those who are innocent and have not been convicted of any crime should not be retained beyond a reasonable and proportionate period. Striking that balance and making the right judgment is fundamental to our debates on clause 14.
I understand the concept of my right hon. and learned Friends amendments, which follow the basic principle of innocence before the law unless guilt has been proven. It is, therefore, a question of putting appropriate restrictions in place. I shall obviously listen carefully to the Ministers response.

David Hanson: The amendments proposed by the right hon. and learned Member for Sleaford and North Hykeham would make two specific changes to the various retention categories set out in clause 14. As he explained, they would remove references to exempt convictions, seeking to clarify that an individual is unconvicted.
To make it clear, exempt conviction is defined in proposed new section 64ZI(2)(b) of PACE, which is to be found on page 35 of the Bill. It is a conviction for a single recordable but non-qualifying offence committed by a person under the age of 18. In such cases, fingerprints and DNA profiles would be retained for five years and then destroyed. In answer to the hon. Member for Hornchurch, it is our intention that the clock should be restarted; if necessary, we would need to take and profile a fresh DNA sample. We recognise that although young people may fall foul of the law, once they have been dealt with by the criminal justice system they can become upstanding members of the community.
My difficultyI hope this will help the right hon. and learned Gentlemanis that the amendment would mean that if a DNA profile had been derived from a child convicted of an exempt offence, which would have been deleted after five years, and if that person was subsequently re-arrested and a fresh DNA sample and fingerprints were taken, they would not fall within the provisions of the limited retention and destruction provisions of clause 14.
Theoretically, the impact of the amendment would be that the DNA profile and fingerprints could be retained indefinitely, which I know is not the intention of the right hon. and learned Gentleman. I hope that he will reflect on that point and withdraw the amendment.

James Brokenshire: I hear what the Minister of State says. In my response, I suggested that we should look outside the five-year period, ensuring a right of retention beyond then. Is it custom and practice to create a duplicate DNA profile in such circumstances? A DNA profile would have been created in relation to the exempt conviction, so it seems slightly odd that if a person was arrested for a second offence, a DNA sample would be taken and a further DNA profile created. I wonder whether there is duplication, given that it appears that there is an interrelationship between the two. I would be interested to know if that is the practice or the intention of the clause.

David Hanson: I shall return to that point in a moment, because I want to ensure that we receive proper advice on the practice regarding those matters.
I turn to amendments 68, 81, 85 and 75. I can see already, from our discussions this morning, that there is an element of complexity around the content of clause 14, which will set out whether the biometric data of those people who have not been convicted of an offence should be retained and, if so, for how long. I believe that the amendments seek to clarify the definitions in clause 14 in respect of persons who have not been convicted.
I hope that the right hon. and learned Member for Sleaford and North Hykeham will recognise that the amendments are unnecessary, for the reasons that I will give in a moment. The proposals, as drafted, set out the circumstances in which a person will be regarded as not having been convicted of an offence. Those circumstances include whether the person has had any previous convictions and their age at the time of the alleged offence, and it does not matter at what stage the arrest or charge was dropped.
The references the amendments make to related offences are also unnecessary, because if a person has not been convicted the provisions of clause 14 will apply once they are convicted, as long as the conviction is not exempt, as I described earlier. Clause 14 will not apply, and their DNA and fingerprints will be retained indefinitely.
I recognise that that is a very complex explanation, Mr. Cook, but I assure you that it will read well in Hansard in due course. I have absolutely no doubt that it will be clear for all the Committee to understand.
For the reasons I have set out, we believe that the amendments are inappropriate and that the right hon. and learned Gentleman should withdraw them. They are unnecessary and I believe that the clause itself, which deals with this very complex matter, is entirely understood by the whole Committee.
The hon. Member for Hornchurch asked about duplicates. The police national computer records whether a profile is on the DNA database. When a person is arrested again, no further sample will be taken if it is shown that their profile is already on the database. I hope that helps to clarify the point that the hon. Gentleman raised.
We will have more discussions on clause 14. However, I hope that the right hon. and learned Member for Sleaford and North Hykeham will withdraw his amendments.

Douglas Hogg: The Minister of State has invited us all to read Hansard, with the view that it will clarify what he has said. Well, I am not being rude to the Minister on this point, but I am bound to say that[Laughter.]

David Hanson: I have every confidence that every point I have made to the right hon. and learned Gentleman is perfectly clear. I have read my response to his amendments exactly as I have been advised. On reflection, it will be even clearer in Hansard.

Douglas Hogg: Let me put it like this. As the Minister read his response to the amendments, I found it pretty dense. That is not a criticism of him; he himself said that this was pretty complicated stuff, and complicated stuff it is. What I propose to do is to read his response in Hansard and reflect upon it. Although I shall withdraw my amendments, perhaps through you, Mr. Cook, I might communicate to those who have responsibility for the Report stage that I am withdrawing my amendments in order to reflect on the printed word.

David Hanson: The right hon. and learned Gentleman is very welcome to have the speaking notes that were prepared for me to respond to his amendments, so that he can reflect on them too, if he so wishes.

Douglas Hogg: I will not be trapped in that way. I will reflect on the printed word, with a view to considering whether we should bring the amendment back on Report, if it is selected.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendment 26, in clause 14, page 30, leave out lines 26 to 34 and insert
(3) Subject to subsection (3AA) to (3AI), the material must be destroyed as soon as it has fulfilled the purpose for which it was taken or supplied.
(3AA) Where any fingerprint, impression of footwear or DNA profile has been taken from a person under this Part who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall be destroyed no later than
(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the initial retention date; or
(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken (or if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken), such date being the initial DNA retention date; or
(c) such later date as may be ordered under subsection (3AB).
(3AB) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.
(3AC) An order under subsection (3AB) shall not specify a date more than two years later than
(a) the initial retention date in relation to fingerprints or impressions of footwear, or
(b) the initial DNA retention date in the case of a DNA profile.
(3AD) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
(3AE) Subsection (3AA) does not apply where
(a) an application under subsection (3AB) above has been made but has not been determined;
(b) the period within which an appeal may be brought under subsection (3AD) above against a decision to refuse an application has not elapsed; or
(c) such an appeal has been brought but has not been withdrawn or finally determined.
(3AF) Where
(a) the period within which an appeal referred to in subsection (3AD) has elapsed without such an appeal being brought; or
(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (3AC);
the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.
(3AG) For the purposes of this section a sexual offence or violent offence shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.
(3AH) An order under this section must be made by statutory instrument.
(3AI) A statutory instrument containing an order under subsection (3AH) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament..

Frank Cook: With this it will be convenient to discuss the following: amendment 69, in clause 14, page 30, line 27, after footwear, insert
and if acquitted after a trial before the end of the period of one year beginning from the date of that acquittal and otherwise.
Amendment 70, in clause 14, page 30, line 28, leave out 6 and insert 3.
Amendment 71, in clause 14, page 30, line 30, after profile, insert
and if acquitted after a trial before the end of the period of one year beginning from the date of that acquittal and otherwise.
Amendment 72, in clause 14, page 30, line 30, leave out 6 and insert 3.
Amendment 27, in clause 14, page 30, leave out lines 35 to 38.
Amendment 82, in clause 14, page 31, line 10, after footwear, insert
and if acquitted after a trial before the end of one year beginning from the date of that trial or otherwise.
Amendment 83, in clause 14, page 31, line 13, after profile, insert
and if acquitted after a trial before the end of one year beginning from the date of that trial or otherwise.
Amendment 86, in clause 14, page 32, line 21, after footwear, insert
and if acquitted after a trial before the end of one year beginning from the date of that acquittal or otherwise.
Amendment 87, in clause 14, page 32, line 24, after profile, insert
and if acquitted after a trial before the end of one year beginning from the date of that acquittal or otherwise.
Amendment 76, in clause 14, page 33, line 33, after footwear, insert
and if acquitted after a trial before the end of the period of one year beginning from the date of that trial or otherwise.
Amendment 77, in clause 14, page 33, line 34, leave out 6 and insert 3.
Amendment 78, in clause 14, page 33, line 36, after profile, insert
and if acquitted after a trial before the end of one year beginning from the date of the trial or otherwise.
Amendment 79, in clause 14, page 33, line 36, leave out 6 and insert 3.
Amendment 73, in clause 14, page 34, line 41, leave out 5 and insert 2.
New clause 6Destruction of fingerprints and samples
(1) The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.
(2) After section 64A insert
64B Destruction of fingerprints and samples etc.
(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.
(2) Subsection (1) above shall not apply where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person.
(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of
(a) the lapse of any applicable appeal period, and
(b) a decision not to appeal such proceedings.
(4) Material falls within this subsection if it is
(a) fingerprints or impressions of footwear taken from the person in connection with the investigation of the offence;
(b) a DNA profile derived from a DNA sample so taken;
(c) photographs falling within a description specified in the regulations; or
(d) information derived from DNA samples so taken from a person.
(5) For the purposes of this section
(a) photograph includes a moving image, and
(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells..
New clause 7Retention of voluntary samples
(1) The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.
(2) After section 64(1A)(b) insert
(c) any other provision in this Part does not prohibit or restrict their retention or require their destruction..
(3) For section 64(3AC) substitute
3AC Retention of voluntary samples etc.
Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention
(a) that sample need not be destroyed under subsection (3) above;
(b) subsection (3AB) above shall not restrict the use that may be made of the sample or of any information derived from it; and
(c) that consent shall be treated as comprising a consent for the purposes of section 63A(1C) above; provided that
(i) no sample or information derived from any sample may be retained on any child under the age of 10 years; and
(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such sample and any information derived therefrom shall be destroyed as soon as possible following receipt of such written application..
New clause 8Repeal of section 82 of the Criminal Justice and Police Act 2001
Section 82 of the Criminal Justice and Police Act 2001 is repealed..

James Brokenshire: We come to one of the key debates on the Bill, on the retention of the DNA of persons who have not been convicted of any offence and the judgment that might need to be applied in connection with such retention. I shall comment on the background to the clause, the rationale for amendment 26, and the contextthe significance of the DNA database.
There is little doubt about the importance of DNA as an evidential tool in prosecutions and in bringing crimes to justice. DNA data can form an important part of the evidential case for guilt and can ensure that serious criminals are brought to justice. I think that the Committee agrees about that. Notable cases have been successfully prosecuted with the assistance of DNA evidence, and that is right and proper.
The fight against crimeparticularly organised crime, terrorism and crimes of violencedepends on the use of scientific, modern techniques of investigation and identification. The DNA database and the use of DNA for those purposes should be welcomed. However, a balance is needed, and that was at the heart of the judgment in the case of S and Marper before the European Court of Human Rights. In some ways that led to the Governments introducing the provisions.
The Court noted that basic freedoms
would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests.
We take a different view from the Government about where the balance should be struck, and that is what frames the debate. It is about the relative merits, the judgments, and the relevant evidence. I look forward to hearing the Minister of States s thoughts on that.
There is a potential conflict between the need to protect individual liberty and the need to provide collective safety against crime, acts of violence and terrorism within the framework of the operation of lawin this case, the European convention on human rights. Because, proportionately, this country has the largest DNA database in the world, and we claim a lead in the use of the technology, which is a positive thing, we bear a greater responsibility to achieve in its use the right balance between the promotion of the wider public interest and safety and the protection of the important private life interests that are central to the debate.
The number of profiles stored on the DNA database by police forces in England and Wales has now topped 10 per cent. of the population. More than 5.5 million individual profiles are held on the national DNA database by police forces in England and Wales, and that amounts to more than one in 10 of the population. The database continues to grow at an exceptional rate. In November 2009 alone, 32,467 profiles were added. Yet despite that growth, the proportion of crimes detected using DNA has fallen. The figure two years ago was 0.76 per cent. and last year it was 0.67 per cent. The argument that indefinitely retaining more and more profiles will lead to a proportionate increase in detection of crimes does not seem to be borne out by statistics. In recent years, the rate has been relatively static, showing a slight fall, rather than increasing, despite the number of profiles that have been added, and the approach that has been taken to date of retaining profiles indefinitely.
Similarly, the proportion of crimes that were detected in which a DNA match was available was 36.5 per cent. two years ago and 32.4 per cent. last year. Simply growing the database and retaining information for ever and a day has not, apparently, resulted in a growth in detections. The central question is: to what extent should the Government retain DNA and other data on people who have been suspected of committing a criminal offence but have been acquitted or have never been charged? There is no disagreement or dispute: an adult convicted of an offence should have their DNA profile retained indefinitely. There are certain exceptions for young people; the Minister of State has touched on those and we will deal with them in further detail later.
Under PACE, as amended by the Criminal Justice and Police Act 2001, fingerprints and samples, including DNA samples, can be taken from anyone arrested for a recordable offence and detained in a police station. More than 1 million people on the database have never been convicted, cautioned or even formally warned or reprimanded, as recorded by the police national computer. Young people and people from black and minority ethnic communities are represented disproportionately on the database, yet despite that and until the judgment in the case of S and Marper, the Governments stated policy was to grow the DNA database for the sake of it; guilt or innocence were not relevant to the growth in the number of DNA samples and data retained. As the Court heard,
the sole reason for their retention being to increase the size and, therefore, the use of the database in the identification of offenders in the future.
The stated policy then was simply to grow the database and retain those DNA records indefinitely.
Obviously, the Government have been forced to change their approach as a consequence of the judgment. Their actions in bringing forward the new provisions were necessitated by it. In that landmark case, the Court held that there had been a violation of article 8 of the European convention on human rights with regard to the retention of DNA by the Government. The Court said that the blanket and indiscriminate nature of DNA retention in the UK was in breach of the convention. It highlighted a number of issues, including the fact that retention was
irrespective of the nature or gravity of the offence with which the individual was originally suspected
and not time-limited; that the age of the suspected offender was not relevant; and that
there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed.
It also highlighted the lack of
provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.
The Court highlighted the differences in approach among the nations of the United Kingdom, noting in particular that the approach in Scotland was noticeably consistent with Committee of Ministers recommendation R(92)1 on the use of analysis of DNA within the framework of the criminal justice system. It is worth noting the reference to recommendation R(92)1, which frames the context of the amendment 26 and the consideration behind its drafting. The recommendation sets out the framework, stating that
Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.
It goes on to add certain provisos, for example:
Where the security of the state is involved, the domestic law of the member state may permit retention of the samples, the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence. In such cases strict storage periods should be defined by domestic law.
It continues:
Since the primary aim of the collection of samples and the carrying out of DNA analysis on such samples is the identification of offenders and the exoneration of suspected offenders, the data should be deleted once persons have been cleared of suspicion. The issue then arises as to how long the DNA findings and the samples on which they were based can be stored in the case of a finding of guilt.
The comments of the Court and the Committee of Ministers recommendation R(92)1 are an important backdrop, setting out the legal context of what may or may not be appropriate. The potential elements are: the legal aspects, which I have run through; and, separately, maintaining the proportionate balance between the potentially conflicting rights of the individual and the collective right of security and the need to prevent crime.
To be fair, the Government have said that they are committed to implementing the Marper judgment, but in doing so, the factors outlined by the Court and in the Committee of Ministers recommendation are directly relevant. It is also fair to say that the Government have made a faltering start. Initially, Ministers sought to reserve an order-making power to address this extremely sensitive issue. It should have been no surprise that that approach was utterly unacceptable and the proposal was subsequently dropped. A 12-year retention period was then suggested for anyone arrested for a crime involving serious violence or a serious sexual offence, and a six-year period for other offences. That approach was based on work carried out for the Jill Dando Institute, but that work was subsequently questioned and the Home Office does not now place reliance upon it to justify its position; it would argue that it relies on what is more up-to-date or slightly different evidence.
The proposition set out in clause 14, and in particular in proposed new section 64ZD of PACE to which amendment 26 relates, is apparently based on an internally-produced Home Office hazard rate analysis as a means of supporting a blanket six-year retention period for all DNA records obtained as a result of an arrest for any recordable offence. However, in examining the relative merits of our amendment and the Governments proposal in the Bill, it is important to note that the hazard rate analysis is subject to a number of important caveats, including regarding how the evidence was drawn up. In his letter to members of the Committee on 2 February 2010, the Home Secretary quite fairly acknowledged that. He stated:
The data available to us, however, describe the likelihood of subsequent arrest, not conviction.
In other words, in drawing up the analysis, the Government have sought to compare arrest data and how long until someone might be subsequently arrested, with the arrest rate for the general population. Again, there were limitations on the data that were available, and the Home Secretary rightly notes in his letter:
We had a maximum of three years of usable PNC data on arrests available to us, because of weeding of PNC arrest entries for earlier years. As a result, we had to extend the data statistically to forecast the risk of re-arrest.
In other words, because there was only a limited amount of data, there had to be an extrapolationa forecastand there are some caveats and uncertainties regarding whether that extrapolation is accurate. We do not have the real data over a sufficient time period to draw that sort of conclusion.
The hazard rate analysis itself highlights a number of caveats regarding the justification for the six-year retention period. On trying to measure the intersecting lines of arrest-to-arrest hazard rate and the rate for the general population it states:
Both these lines are measured with some degree of uncertainty...the hazard rate curve is extrapolated, rather than being based on real data...The comparison arrest rate for the general population is also not known precisely but estimated.
In other words, two estimated lines intersect to come up with a six-year period. The analysis continues:
This means that the intersection of the two, around the six-year point, is quite sensitive to errors in either the extrapolation or the estimated risk of criminality for the general population.
I think that the Government themselves would say, in looking at a six-year period, that there is some flexibility about where the lines may intersect, and therefore flexibility about what is appropriate based on their arrest-to-arrest hazard rate analysis. We argue that, in striking the six-year period, the Government have fallen on the wrong side of the line. Notwithstanding the evidence, they have failed to strike an appropriate balance between collective protection and individual freedom. On the basis of the hazard rate analysis, we have taken a different approach, as reflected in amendment 26.

Alan Campbell: Is the hon. Gentleman saying, in a perfectly acceptable way, that he is drawing a line similar to the Scottish model based on the evidence produced by the Home Department, although he disagrees with the line that we have drawn; or is he adopting the Scottish model in full, without reference to that evidence? If he is, where is the evidence on which the Scottish model is based?

James Brokenshire: I am grateful to the Under-Secretary of State for that intervention. I will come on to the support that even the Home Department document appears to provide for a three-year retention period. It appears to support, in some ways, the principles that have been enunciated by the Scottish retention period of three years, plus the two-year top-up. Albeit that the proposals set out in amendment 26 are modelled on the Scottish model, they are not an exact replica or an exact carbon copy. There are certain differences, as I am sure the Ministers accept.
The Minister of State will be aware of the research that was subsequently conducted by Professor Fraser in his investigation of the appropriateness of the retention periods in Scotland. I will come back to that point, because I know that that was an issue that came up on Second Reading and I also note that, in his letter of 2 February, the Home Secretary makes reference to that work as well.
It is doubtful that the Governments proposals for DNA retention, as outlined in clause 14, comply with the European convention on human rights. In a written statement to the House last November, the Home Secretary acknowledged that the European Court in the S and Marper case had
suggested that the seriousness of the alleged offence should be a factor in determining what length of retention was proportionate.[Official Report, 11 November 2009; Vol. 499, c. 26W.]
However, the Government have not taken that into account in relation to adults in their proposal. It is interesting that they appear to make a fundamental distinction for children, which is not reflected in their approach to adults. There is some inconsistency in the logic attached to the Governments proposals. It is interesting to note that, and it will be interesting to hear the Minister say why those slightly different lines have been taken, with a blanket six-year retention for adults and slightly altered approaches for children and young people.
The Equality and Human Rights Commission has written to the Council of Europe arguing that the Governments revised proposals do not comply with the Committee of Ministers recommendation R(92)1. What we can be clear on is that a system similar to that used in Scotland would be compliantthe Court stated that in the judgment on the S and Marper case. Although not perfectit is a question of fine balances of judgmentwe believe that an approach similar to that used in Scotland should be adopted in England and Wales.

David Hanson: May I get to the nub of the argument? We now come to what this is really all about. If we could persuade the Committee of Ministers that six years was proportionate; if we had evidence that DNA collected and kept for between three and six years under that system could lead to convictions; and if, as our experience showsI refer to the letter from the Home Secretary23 victims of serious violence would have been denied justice if we had not adopted that model, why is the Conservative party not interested in bringing those criminals to justice, and in giving justice to the victims? What is the basis for that? I would really like to have that explanation, because that is the nub of the argument.

James Brokenshire: That is certainly one argument. We take seriously the issue of the use of DNA records and material, and the use of technology in bringing crimes to justice, as I have said. The Minister has highlighted a number of cases. In his letter to the Committee, he referred, fairly, to some cases where DNA has been used. They were serious cases and quite shocking in many regards, but the question is how the DNA technology fits in with other aspects of policing and evidence. What are the other facts and circumstances that may be appropriate?
The Minister highlighted the case of Abdirahman Ali Gudaal in support of that evidence. It was an appalling case. On 19 October 2008, a woman was dragged into a bedsit as she walked home from a night out and was repeatedly raped over a two-hour period. The DNA record was used as part of the prosecutions case against this individual; that was right and proper. He had previously been arrested for robbery, and although he had not been charged, his DNA profile was taken. What the Minister did not mention was that the appalling attack took place in the rapists own home, and that the victim escaped from that bedsit, so there was other intelligence that might have led to someone being convicted of those crimes. We cannot look at the issue in isolation. There may be other relevant factors that would also have led to that conviction.

Tom Brake: Another example that the Minister deployed is the case of Matthew Fagan, who, when sacked from his place of work, returned quite soon afterwards to burgle it. Does the hon. Member for Hornchurch agree that that is another case where the police might have been able to establish a connection, because that person was a disgruntled ex-employee and probably one of the first people whom they might have interviewed?

James Brokenshire: The hon. Gentleman makes a fair point about the interrelationship between other evidence, other more general policing issues and the data that might be available. [Interruption.] Before I give way to the Minister and my right hon. and learned Friend the Member for Sleaford and North Hykeham, I should like to refer to case study 5.
In 2006 a Dutch male was arrested on suspicion of robbery. This was investigated and his DNA was taken before he was released without charge. In 2008 that same male was further arrested for rape after being identified by the victim. The DNA crime scene samples taken at the time were found to match the suspects DNA profile, already held on the national DNA database, and he was later tried and convicted in court. Abdirahman Ali Gudaal was Dutch. He was arrested for robbery in 2006. He was said to have raped somebody in 2008. I therefore submit that case studies 1 and 5 are one and the same case. Could the Minister look into that? It seems strange that two Dutch people were arrested for robbery in 2006, committed a rape in 2008 and were subsequently convicted.

Douglas Hogg: One should be a bit cautious about all that. I have told the Committee about one case from my professional experience. I referred to the defendant as Mr. X. I am willing to give my hon. Friend and the Minister, if he wants, the name in private, but I do not want to embarrass the defendant by giving his name in Committee. That was a case where the rape was discovered exclusively through the DNA. When he came before the court there was some corroborative evidence, but he would never have come before the court had he not subsequently been arrested for attacking a taxi driver. His DNA was taken and was matched with samples that were 10 years old.

James Brokenshire: I absolutely agree with my right hon. and learned Friend about the retention of crime-scene DNA; it is absolutely right that that should happen. As our amendments show, we accept that DNA samples from people who have been arrested but not convicted of offences of a sexual or violent nature should be retained for a period. Even if the attack that he mentioned took place before the attack on the taxi driver, it would have been covered by our proposals, which would have assisted in the conviction.
That all comes down to balancing the rights of someone who has not been found guilty and so is, to all intents and purposes, innocent. It is a question of judgment where we draw the line. The Government have obviously not followed the Scottish model that has been in place for a few years. We would make some slight modifications to it, and that is reflected in the amendments. I look to the evidence and the backing in relation to support, reasonableness and the approach taken.
It is worth noting that, as I have mentioned, Professor Fraser looked at the situation in Scotland and made no recommendations for change. The Home Secretary said in his letter that he felt that that was not necessarily fair or reasonable, and questioned the approach. A letter from Lord Bachthe Parliamentary Under-Secretary of State, Ministry of Justiceto Lord Pannick confirmed that Professor Fraser
did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland.
However, the Home Secretary highlighted that
That is to misunderstand this research which did not assess whether alternative systems would have been more effective.
I checked the terms of reference of the inquiry, which stated that the inquiry should extend to cover experience elsewhere. I am not sure that it is right that there was no consideration of alternative systems in support of the broad Scottish model. The terms of reference stated that the inquiry was to take account of experience elsewhere.
Although I understand that the analysis undertaken by Professor Fraser may not support the Governments case, it is still worth considering. It certainly does seem to take account of the relevant factors and the approach taken in Scotland since the introduction of the system there. Although the system in Scotland is not perfect, we believe in a similar approach, reflecting the relative merits of, and the balance between, individual freedoms. The general starting point is that people should not have their DNA record retained if they have not been convicted of an offence. In striking that balance and taking into consideration some of the individual cases that rightly need to be dealt with by DNA detection, a system based on the Scottish model is proportionate and reasonable. It will provide the levels of protection that the public would expect. The cases and examples that the Minister provided do not seem to question the approach that we are taking in the amendment, which appears to us to be appropriate and to strike the right balance.

Shona McIsaac: I have been listening carefully to the hon. Gentlemans arguments in relation to the Scottish model. However, is not the gaping hole in his argument the fact that in Scotland there are three possible verdicts: not guilty, not proven and guilty? Therefore, to make a direct comparison between not guilty in Scotland and not guilty in England is not to compare like with like.

James Brokenshire: The hon. Lady might have a point, were it not for the fact that even the hazard rate analysis, which we talked about, appears to suggest that a three-year period might be appropriate, justified and reasonable. It is appropriate to examine that. The hazard rate analysis says that the basic estimate was six years, which is the approach that the Government have taken. It states:
However, most of the incremental offending risk of the NFA group is dissipated some time before this point, as indicated by the relative flatness of the hazard curve after, for example, three years. The shape of the hazard rate curve indicates how significant offending risk is in the years immediately following an initial arrest. This means that the choice of shorter retention periods is quite robust to the sensitivities introduced by these errors and assumptions.
The analysis appears to say that three years may be a justifiable and supportable period in relation to that work. The Home Office itself accepts that, ultimately, it is a matter of judgment and that a three-year period could be regarded as within the scope of reasonableness, even on the basis of the hazard rate analysis.
Our judgment is that the proposals outlined in amendment 26 strike the right balance, unlike the Governments proposals, which remain on the wrong side of the line, are not appropriate and do not reflect the basic starting point of innocence before the law unless guilt has been proven.

Frank Cook: I call Mr. Hogg.

Douglas Hogg: I am sorry, Mr. Cook, but I was not expecting to speak.

Frank Cook: The right hon. and learned Gentleman has tabled several amendments in this group, so I assumed that he was prepared to speak to them. If that is an embarrassment for the moment, I will call Mr. Brake.

Tom Brake: As the hon. Member for Hornchurch made clear in his speech, this group of amendments goes to the heart of the debate on DNA and its retention, and whether it is right to retain the DNA of innocent people. I must confess that the matter is controversial, even within the Liberal Democrats. Perhaps our party conference took a hard line by making a clear and simple distinction between people being on the database if they are convicted and off the database if they have been found innocent or if charges have not been pressed against them.
Interestingly, the Home Affairs Committee is currently conducting an inquiry into the DNA database, and the Minister was sitting in the Gallery when that Committee heard evidence from Sir Alec Jeffreys, who invented the techniques for DNA profiling 25 years ago. He made it clear that, had he known then that 25 years later he would be sitting in front of a Select Committee debating whether it was appropriate to have millions of peoples DNA retained on a database, very large numbers of whom are innocent of any crime, he would have been appalled. I perhaps expected him to say that he regretted ever having invented the techniques, but he said that they were significant and important for tackling crime and that he therefore had no regrets about it. He does, however, have significant regrets about how the techniques are being used.
Sir Alec also confirmed in evidence that the risk of mismatches or false matches for DNA will increase as the number of people on the database increases, and that it will increase significantly when the process of exchanging DNA at a European level starts, which he said is already happening. He confirmed that he was aware of some scientific analysis that showed that it is now quite easy to falsify DNA and place it at a crime scene, and a company called Nucleix Ltd has published reports on that. He was clear that for several reasons he regretted the Governments decision and was much more comfortable with a position in which innocent peoples details were not kept on the database.

Brian Iddon: Professor Jeffreys, who invented the techniques, has referred to the number of markers that should be kept, and I think that it would be fair to put that on the record.

Tom Brake: Yes, we have discussed that matter in both this Committee and the Select Committee. As I understand it, in the UK we use 10 markers, but the Germans use five, hence the increased risk of false matches. Sir Alec wanted to highlight that issue for us, and I hope that when the Minister responds he will pick up on the ability to generate false DNA, because that is an area that we should be concerned about.

Shona McIsaac: Does the hon. Gentleman acknowledge that the police in this country have now confirmed that they will move to 15 points of comparison, which will make false matches less likely?

Tom Brake: I agree that the probability of a false match is small, but Sir Alecs point was that it is not like the national lottery, which happens once a week; we are talking about something that happens regularlydaily or twice dailyso the probability increases. I do not know how many matches are done each day, but they are clearly done with great frequency, and the probability of a false match is greater as a result. Also, of course, DNA is often degraded, so the 10 reference points required for matching are not always present. That is my understanding.
The Conservative spokesman and I must acknowledge that in a small number of circumstancesthe right hon. and learned Member for Sleaford and North Hykeham referred to one case without naming namessomeone could be convicted simply on the basis of their DNA, because that is the only evidence available. There is no point pretending that that will never be the case.

Douglas Hogg: I do not want to mislead the Committee. In the case in question, the man would never have come before the court or been convicted but for DNA, but there was some corroborative evidence over and above the DNA.

Tom Brake: I thank the right hon. and learned Gentleman for making that clear, but there might be circumstances in which a conviction could be secured simply on the basis of the DNA available, without any other corroborative evidence.

David Hanson: In our evidence from the Association of Chief Police Officers, Hugh Orde said:
DNA...puts a person in a place, and they then have to explain that.[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 42, Q77.]
DNA evidence might put a person in a place and bring them before the court to explain. If they cannot explain why they were there, a conviction might result. Equally, however, the DNA, even if it were slightly flawed, might put the person in that place, but they might have a perfectly good alibi that would allow them to be cleared of the charge in due course. The key point is that without the DNA, they would not come before the court in the first place. That is why DNA is important, and it helps secure convictions accordingly.

Tom Brake: I am not suggesting that the police should not use DNA in tackling crime. Clearly they should, but this debate is about whether the DNA of people who have not been found guilty of any offence should be retained on the database. The hon. Member for Hornchurch quoted examples, and I intervened on him to cite the example of Mr. Fagan. In the case referred to by the hon. Gentleman, a horrendous attack happened in the flat of the perpetrator, which suggests that there would have been other means of securing a conviction. The arguments and examples deployed by the Minister to date have not been very convincing.
As Sir Alec said, false matches are also probable, which could lead at the very least to police pursuit of a line of inquiry that delays proceedings or the effective investigation of a case. We heard from witnesses during our first sittings that there is no guarantee that the Governments proposals will address the concerns of the European Court of Human Rights. I contend that the Liberal Democrats proposed new clauses 6,7 and 8 would do so and would meet the requirements. The evidence deployed by the Government to justify a six-year retention period has not been particularly convincing.
The hon. Member for Hornchurch said that the UK needed to set an example. We have the largest DNA database. Clearly, our Government cannotnor should theymake decisions simply because other countries will quote our example in respect of measures that they take, but that is a risk. I understand that the United Arab Emirates is considering introducing a mandatory DNA database on which every resident will have to have a DNA profile kept. The UAE could say, If its all right in the United Kingdom for people who are innocent of any crime to have their DNA retained for a certain period, what possible objections can there be for us being a little bit more systematic in retaining or capturing the DNA profiles of every resident of our country?
The evidence deployed so far by the Government on whether there is a greater likelihood of someone whose DNA is kept subsequently committing a crime, compared with a random sample of people whose DNA is kept on the database subsequently committing a crime, is somewhat inconclusive. Broadly speaking, if the convictions secured in respect of the former or the latter are the same, to be consistent the Government should argue for a United Arab Emirates model, which captures the DNA profiles of everyone. The Minister will no doubt criticise mehe has criticised the Conservative spokesmanby saying that our proposals would allow people to escape conviction, but by not adopting a DNA profile database that retains the details of everyone in the country he will not secure some convictions that he could presumably secure if we were all entered on the database.
I should like to mention the approach that is being adopted towards children in the Governments proposalsI emphasise children. We will come to another example shortly on gang injunctions, although I will not detain the Committee on that matter now, where the UK Government seem to adopt a particularly draconian attitude towards children, whereas other European countries do not. Such an approach perhaps explains why there is a breakdown between children and adults in this country, which has led, as Committee members know, to our children perhaps being less happy than those in virtually any other country in the world. The draconian approach that is adopted on DNA retention and gang injunctions for 14-year-olds is regrettable. Many organisations representing children are disappointed with the Governments approach, because it is criminalising children or treating them in a way that suggests they are mini adult criminals, and in many respects treating them the same as adults.
I do not want to pursue the debate further. This group of amendments is fundamental to our debate about DNA and DNA retention. If the Minister wants a solution that both helps to tackle crime, although not quite to the extent that he would like, and ensures that peoples civil liberties are maintained, he should adopt the one that we have advanced. Our solution is much more straightforward. The Minister himself acknowledged just a few minutes ago that what is being proposed in the Bill is exceedingly complex. I am willing to bet a fiver

Shona McIsaac: The hon. Gentleman is not very confident.

Tom Brake: For someone who does not bet, a fiver is a huge amount of money. I bet a fiver that the algorithm the Minister says will be used to ensure that peoples DNA is deleted from the database consistently, efficiently and methodically is unlikely to work.

David Hanson: Heres the fiver.

Tom Brake: The bet is on the table. With that, I will listen to the Ministers response.

Tony Baldry: I am something of an agnostic on this issue, and I think there may be other voices that need to be heard. Our overall purpose seems to be to ensure that justice is done. In both the Old Testament and the New Testament there is an exhortation, What does the Lord require of you but to seek justice, show mercy and walk with the Lord thy God. Justice is important.
DNA technology enables police forces to identify perpetrators of serious crimes, such as murder and rape, who might otherwise get away with it. I do not know whether I am the only member of the Committee to have been fortunate enough to spend time on the police parliamentary scheme, but I commend it, because it is worthwhile. I spent a day with the Thames Valley police cold cases review team. It examines murders and rapes that were committed in the Thames valley over the past 20 years, using DNA as a means of identifying possible perpetrators. On the day that I was with the team, officers were preparing to arrest a man who was subsequently convicted at Oxford Crown court of a rape that he had committed some years before. Without the DNA, that man would not have been brought to justice and, throughout her life, the victim would have known that no one had been held to account for that rape.
DNA is a valuable tool for helping to bring people to justice. I understand the point made by the hon. Member for Carshalton and Wallington, but it also applies to false positives with fingerprint evidence. Whenever fingerprint evidence is adduced in a criminal trial, the prosecution must prove that evidence to the jury, and I am sure that the same will apply to DNA evidence.
I am agnostic about the matter because during our evidence sittings, those representing civil liberties groups said that they objected to DNA being retained because it provides a lot of information. It might show our propensity to contract cancer later on, and so on. But I understand that that is not what is proposed. I understand that a set of numbersperhaps 10will be retained. I cannot see a problem if the state retains a set of numbers, as it already does with national insurance numbers.
Perhaps I have missed something, but my national insurance number, which is unique to me, consists of two letters, followed by six numbers, followed by a letter. It consists of nine digits, and I put it on numerous documents. When constituents write to us about their problems with the Child Support Agency or other organs of state, the reference we use to identify them uniquely is their national insurance number. I do not understand why there should be a problem if the state holds a seven or 10-digit number. That is my perspective, and I put it on the record because I do not understand why my civil liberties would be infringed if someone knows that my DNA is 1234512345. What is the problem?
However, I accept that the Bill came to the House because the Government lost a case in the European Court of Human Rights.

Douglas Hogg: I rather agree with my hon. Friend, and I have articulated my view to the Committee. The problem is that our view is far ahead of public opinion, which is probably where we should direct our conclusions, rather than our personal opinions that happen to coincide.

Tony Baldry: I say gently to the Minister that our problem with public opinion is that the police may have been the authors of their own misfortune. When people have been found not guilty, or investigations have been discontinued, and they have asked for their DNA to be destroyed, the polices attitude has been, Sod you. We might not have got you, but we think youre guilty of something so well retain your DNA. That is why people who have not been found guilty of something object to the police retaining their DNA. I think the police have an attitudinal problem.

Douglas Hogg: My hon. Friend is right, but there is a further point. He and I served in the Ministry of Agriculture, Fisheries and Food where we both discovered the publics distrust of scientists and of the use to which scientific material can be put. Does my hon. Friend agree that there is an underlying distrust of science, scientists and, indeed, the big state in relation to this issue as well?

Tony Baldry: I certainly understand that point. In some criminal cases, specialist evidence has been submitted by experts on statistics who have sometimes inadvertently managed to mislead the court. We have seen a number of such cases unravel in the Court of Appeal criminal division. There have been misunderstandings by everyone of the statistics involved in some notable, tragic cases of battered babies.

Robert Flello: Will the hon. Gentleman give way?

Tony Baldry: No, or I shall lose my train of thought.
We are here not because of my personal view, or that of my right hon. and learned Friend the Member for Sleaford and North Hykeham, of what civil liberties are, but because of the decision of the European Court of Justice. My questions genuinely seek knowledge. What is the position on DNA in other member states? Why has it not been possible for the Justice and Home Affairs Council, which the Minister attends, to achieve some consensus or agreement among colleagues in the European Union on an appropriate way forward? It seems that we are being offered two choices: the Ministers choice and the Scottish model. I cannot believe that those are the only variants. What is happening elsewhere in other European member states?
Finally, there were some suggestions during our oral evidence sittings that the Governments proposal will not be judge-proof. In other words, we could go through the palaver of taking the Bill through both Houses before the general election, and then find that no sooner has it been enacted, someone returns to the European Court of Justice and gets it overturned. What indications does the Minister have that the Governments proposed solution will command favour and will not be overturned by European judicial review?
Mr. Hoggrose

Frank Cook: At long last. I call Mr. Hogg.

Douglas Hogg: I shall disappoint you, Mr. Cook, because I do not feel any obligation to speak at great length. Many of the amendments that I tabled in this group were responded to by the rather dense material that the Minister read in the debate on the previous group. You will recall, Mr. Cook, that I said that I would read that dense material and then come to a conclusion. The group of amendments under discussion are in fact very much the same as those that were the subject of the dense response. In any event, I am minded to rally around the proposals suggested by my hon. Friend the Member for Hornchurch. To that extent, anything I say would be substantially otiose.
My only other pointjust to show that I have been listening to the debateis to my hon. Friend the Member for Banbury. Although it might be desirable for Ministers attending the Justice and Home Affairs Council to agree what my hon. Friend described as a way forward on dates and duration, I am not sure that it would make a lot of difference. What we are dealing with is an interpretation of the European convention on human rights and the issues that flow from it. The Justice and Home Affairs Council would not be able to form a decisive view as far as the European convention on human rights is concerned.

David Hanson: This debate represents the nub of our discussions in relation to DNA in general. May I say from the outset that I am with the hon. Member for Banbury? This is about justice and bringing people who have committed crimes to justice. It is about making sure that the police have every opportunity to ensure that such people are brought to justice, and that the victims of crimes have a sense of satisfaction that someone is held to account for the crime. The framework that we have put in place is a tool to help secure justice.
I will start with the hon. Gentlemans important point about European comparisons. There is no general consensus. Operation varies in Europe and, as the right hon. and learned Member for Sleaford and North Hykeham said, that will form the backdrop for consideration of each of the regimes in relation to the European convention on human rights. However, I shall give some examples.
At one extreme, which may not be endearing to the Committee, is Lithuania, where retention lengths are between 100 years and 10 years after death for any recordable offence. Retention length in Estonia is 10 years after death; in Austria, the period indefinite for a serious offence but removed if requested. Our colleagues in Sweden, Belgium, Cyprus, the Czech Republic and Hungary have no retention procedure, which might not actually be policy but due to the fact that they do not have the capacity to retain. France retains for 25 years and Finland erases after one year. There is a range of options, and no consensus.
The Government have tried not to be like the United Arab Emirates. We want to be proportionate, to base retention on evidence and to ensure that individuals are brought to justice within a reasonable framework. Initially, we looked at 12 years. We produced a consultation paper in May 2009 that proposed an indefinite period for adult conviction; for adult non-conviction, 12 years; for adult non-conviction of a minor crime, six years; for under-18 conviction of a serious crime, indefinite; and so on.
The consultation and the European judgment have made us reflect, so we are trying in clause 14 to be proportionate but to retain justice at the heart of the clause and its objectives, as the hon. Member for Banbury said. We have reflected, we have revised our proposals and we have pushed the envelope as far as we can. As Members know, the revised proposals are six years for those who are not convicted of a minor or serious crime, and indefinite for those who are convicted of any crime. We have pushed the envelope as far as we can, but we believe that we can secure the support of the Committee of Ministers and comply with our obligations under human rights legislation.
With due respect to the right hon. and learned Member for Sleaford and North Hykeham and other Opposition Members, I find it ironic that the official Opposition, who are probably the most Eurosceptic party in the House at present, are leaning on the European convention on human rights and on ensuring that we meet our obligations in Europe in the legislation. We are trying to do that in a proportionate way.
The position of the hon. Member for Carshalton and Wallington is perfectly legitimate. It is a position of absolute integrity: the Liberal Democrats would not take DNA from anybody who is presumed innocentwho is not found guilty of any crime. That is an absolutely legitimate position.
However, as I have done previously, I can list many examples of people who had been arrested, found not guilty, and released without charge, yet who, on the basis of evidence, were subsequently found guilty of a serious offence and convicted. The murderer of Sally Anne Bowman, one of the hon. Gentlemans constituents, was brought to justice through DNA retained under our proposals.
I am starting from the basis that if we have to hand evidence that will stack up in court, help to bring somebody to justice and convict them of a serious crime, we should use it. Hugh Orde, the President of ACPO, said in his evidence to us that it
puts a person in a place, and they then have to explain that.[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 42, Q77.]
That is something we should support.
I genuinely cannot get my head around why a party that has always professed to be the party of law and order would not use modern technology to ensure that individuals are brought to justice for serious crimes. I can legitimately understand the Liberal Democrats position; it is absolutely fine.
The position of the official Opposition is Lets adopt the Scottish model. The Scottish model keeps the DNA of people who have been convicted, or arrested for serious crimes but not charged. I have given evidence to the Committeeit can be disputed and examined showing that ultimately, people who have been arrested have the potential to commit further crime in a six-year period.

James Brokenshire: And be rearrested.

David Hanson: The point is that our evidence shows that like it or not, people who have faced initial arrest and been charged, even if they are not convicted, have a propensity to return before the courts and be convicted within six years. Not everybody will; I accept that. The hon. Member for Ashford (Damian Green) asked the chief constable to remove his DNA, and the chief constable consented. That is perfectly legitimate. There may even be other hon. Members for Ashford out there who do not know their rights and do not go to the chief constable, even though they are innocent, and who, although they have been arrested and had their DNA taken, will never commit a crime.
That might be the case, but I must balance that against the contrary judgment. I understand that it will be difficult. It will infringe peoples rights and could cause them personalalthough not publicembarrassment. I accept all of that, but ultimately, I want a system in place in which people such the killer of Sally Anne Bowman, who was in the same position, can be brought to justice and will spend a long time in prison so that families have justice. That murderer is behind bars, which means not just that he has been brought to justice for that crime, but that he may not go on to kill my daughter or somebody elses child. I am sorry, but I think that is a good system, and I will defend it to the Committee. Civil liberties are importantI accept that, and I will say it to the hon. Member for Carshalton and Wallingtonbut civil liberties also include the right not to be murdered randomly on the street by an individual if it can be prevented. To me, that is the most important part of the debate.
I think that the hon. Members for Carshalton and Wallington, and for Hornchurch, are in the wrong place. Actually, we might like to stretch the envelope still further to our original proposal of 12 years, but we must accept our legal obligations and the European judgments, and we must look at the evidence. All those things have brought us to the conclusion that six years is proportionate and realistic, for the reasons that we have discussed.

Tony Baldry: Can the Minister tell the Committee why he thinks the proposal will be judge-proof? Is he confident that it will not be overturned?

David Hanson: We have arrived at the proposals in the Bill after much consideration and legal advice. They will be tested, under the legislation, by the Committee of Ministers, but we are confident that we have pushed the envelope as far as we can, ensuring that we achieve our justice objectives while meeting our obligations generally.
We are coming to the end of the sitting. I think that I have made my points clear. I resist all right hon. and hon. Members amendments for the reasons that I have outlined. The proposals are fair. I commend them to the Committee and ask Committee members to reject the amendments if they are not withdrawn.

James Brokenshire: This has been a useful debate with some interesting contributions from all parties, although I am surprised that the Ministers responses to many questions were so short. I respect his point about justice, although I reject his characterisation of the Conservatives approach to the use of technology to address crime and bring criminals to justice. I have made it clear that I believe that there is a fundamental role for DNA and other technological advances in ensuring that serious and other criminals are brought to justice, so that heinous crimes such as the ones that he mentioned are dealt with, and so that justice is seen to be done.
My hon. Friend the Member for Banbury made his points powerfully and persuasively, but I say to the Minister

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One oclock.